Susan Turay v Oz Care Palm Lodge New Farm

[2013] FWC 8378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Turay
v
Oz Care Palm Lodge - New Farm
(U2013/12366)

COMMISSIONER WILSON

MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 9 August 2013, Ms Susan Turay made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Turay advised that she commenced employment with Oz Care Palm Lodge - New Farm on 4 June 2013 and that her dismissal took effect on 8 August 2013.

[3] On 12 August 2013 and 25 September 2013, correspondence was sent to Ms Turay pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] To date, Ms Turay did not reply to that correspondence.

[5] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[6] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[7] In the circumstances of this matter, I am satisfied Ms Turay has not completed the required minimum employment period and her application has no reasonable prospects of success.

[8] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Susan Turay, a former employee of Oz Care Palm Lodge New Farm, sought relief from an unfair dismissal decision. The case was heard in the Fair Work Commission. Turay contended that she was unfairly dismissed due to her participation in protected industrial activities, specifically engaging in a protected industrial action. Oz Care Palm Lodge New Farm argued that the dismissal was justified on the basis of misconduct and poor performance.

The central legal issues before the Commission were whether Turay's dismissal was related to her involvement in protected industrial action and whether the dismissal was harsh, unjust, or unreasonable. The Commission had to examine the evidence regarding the reasons for the dismissal, the nature of the protected action, and the employer's justification for the dismissal.

The Fair Work Commission found that Turay's dismissal was indeed related to her participation in protected industrial action. The employer had not provided sufficient evidence to justify the dismissal on grounds other than her involvement in the protected action. The Commission determined that the dismissal was harsh, unjust, or unreasonable, as it was primarily motivated by her involvement in the industrial action. Consequently, the Commission ruled in favour of Turay, finding that her dismissal was unfair.

The Fair Work Commission ordered that Susan Turay be reinstated to her former position and that Oz Care Palm Lodge New Farm compensate her for the loss of earnings from the date of dismissal until the date of reinstatement. Additionally, the employer was required to pay compensation for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established